Appellate motions for rehearing: when is enough really enough?

• Author: Alfert, Robert, Jr.
• Position: Florida Rule of Appellate Procedure 9.331

When Is Enough Really Enough?

The goal of this article is not discourage the use of rehearing motions, but rather to encourage meaningful, objective analysis prior to their filing.

The Florida Rules of Appellate Procedure provide a vehicle for a party to seek, under narrowly circumscribed bases, reconsideration of an adverse decision on appeal. Rule 9.330(a) sets forth the requisite threshold for a legally sufficient motion: "The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended." Moreover, "the motion shall not re-argue the merits of the court's order." It is confounding that such a simple rule has been so rife with abuse and has caused such consternation among appellate courts. The misuse of motions for rehearing has caused more than one jurist to lament that "Rule 9.330 continues to occupy a singular status of abuse" in the appellate process.[1] The rule designed for those exceptions when an appellate court clearly erred has in essence mutated into routine motion practice.[2]

As the Fourth DCA has pointed out recently, an inordinately high number of motions for rehearing are being filed--notably in more than half of the cases disposed of by written decision[3]--and the vast majority violate Rule 9.330(a).[4] With very few exceptions, these motions are denied.[5] There exists a legitimate concern that this continued routine motion practice undermines the credibility of the rehearing process and perhaps creates a heavier burden in those rare situations in which a rehearing motion is appropriate. "If this abuse of motion practice perseveres, `the fear might arise that all motions for rehearing would, at least initially, be viewed with skepticism by a busy court.'"[6]

The purpose of this article is to articulate the limited uses of the rehearing rule principally by pointing out the common mistakes and abuses of the motion practice. The body of cases on this subject fortunately provides an illuminating matrix of what not to do. The goal of this article is to promote a more restricted use of motions for rehearing. The cases clearly posit, after all, that counsel should use these types of motions sparingly, and only after meaningful, objective analysis.[7] The rehearing rule was never designed as a last ditch procedural device for continued argument or to stall the issuance of a mandate.

Standard of Review: Not for Re-argument

Although relatively incongruous with our system of appellate advocacy, a motion for rehearing is not a vehicle for continued argument. The rehearing rule clearly states that "[t]he motion shall not re-argue the merits of the court's order."[8] As Justice Arthur England once opined, "[I]t is not the office of rehearing to invite a complete re-analysis of all that has gone before."[9] Appellate decisions note too frequently that most motions for rehearing are mere condensed versions of points previously argued in the movants' appellate briefs.[10] These types of motions make little sense strategically; they are summarily denied and run the risk of public admonishment and sanctions.[11]

The proscription against continued advocacy logically extends to raising new points on rehearing. As with the preservation at trial of issues for appeal, the failure to raise an issue or argument on appeal is fatal on rehearing. Appellate courts will not consider issues raised for the first time in a motion for rehearing,[12] and certainly will not consider new evidence.[13] Appellate courts also will not entertain authorities cited for the first time in a motion for rehearing when those authorities could have been cited in the appellate briefs[14]

The Fourth DCA perhaps has articulated with the most clarity the applicable standard of review governing motions for rehearing:

Motions for rehearing are strictly limited to calling to our attention--without argument--to something we have obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempt at advocacy. It should be demonstrative only--i.e., merely point to the overlooked or misunderstood fact or circumstance.

Goter v. Brown, 682 So. 2d 155, 158 (Fla. 4th DCA 1996).[15]

The First DCA decision in State ex rel Jaytex Realty Co. v. Green, 105 So. 2d 817,818 (Fla. 1st DCA 1958), which many other appellate decisions have cited with approval,[16] commented that the sole purpose of a motion for rehearing is to point out to the court some fact, precedent, or rule of law overlooked in the decision.[17] For example, the First DCA granted a rehearing motion in Morgan v. Amerada Hess Corp., 357 So. 2d 1040, 1045 (Fla. 1st DCA 1978), in which the movant pointed out that the court had overlooked the fact that certain defendants were joined in the suit after the expiration of the applicable statutes of limitations savings clause, and thus claims against them were time-barred.

In short, an attorney should file a motion for rehearing only after "objectively" and "carefully" analyzing the law and the opinion of the court, if any. 18 "It is only in those instances in which this analysis leads to an honest conviction that...